The Supreme Court on Thursday gave a final opportunity to fugitive businessman Vijay Mallya, accused in bank loan default case of over Rs 9,000 crore involving his defunct Kingfisher Airlines, to appear before it personally or through his lawyer in a contempt case where he has been found guilty.
The top court said it has given multiple opportunities to Mallya to appear either personally or through a lawyer and had even given specific directions in its last order dated November 30, 2021.
A bench of justices U U Lalit, S Ravindra Bhat and P S Narasimha posted the contempt case for further hearing after two weeks, saying that respondent contemnor (Mallya) is at liberty to act as per direction given in order dated November 30 last year, failing which the matter shall be taken to its "logical conclusion".
At the outset, the bench told senior advocate Jaideep Gupta, who has been appointed amicus curiae in the matter, that it has found the contemnor guilty of contempt of court, and now, punishment has to be imposed.
"Going by normal logic, the contemnor has to be heard but from that stage he has not appeared before the court. What course should the court adopt," the bench asked Gupta, adding that ministry officials say some proceedings are going on but the court does not know what.
Gupta said that the contemnor does not need to be physically present, and he can appear through his counsel, and the court may clarify this further in its order.
Justice Bhat said that the case has different colours, and the contemnor has abstained from the proceedings.
"Next hearing, the same thing will happen. We will have to pronounce the sentence in absentia. In this situation, in other countries courts are not powerless. We want assistance in that regard," Justice Bhat said.
The bench said this problem should not become a gateway for courts of first instance to adopt this course.
"We will have to say that this is in extraordinary circumstances in which he has been found guilty and is on the run. We need to have appropriate safeguards," it said.
Gupta said the court would have to make it clear what would happen and what consequences would follow, if Mallya does not appear either personally or through his lawyer.
Solicitor General Tushar Mehta, appearing for the Centre, said the court has inherent jurisdiction in contempt cases and that it has given enough opportunity to Mallya, which he has not taken.
He said it is not the government's stand that something confidential is going on, rather the government of India has been informed by UK officials that there is some confidential proceeding going on which cannot be shared.
The bench asked Gupta, "What should the court do? Should we appoint an amicus for the contemnor or do we proceed ahead? Normally, in criminal matters, we appoint an amicus to represent the accused."
Gupta said that if no lawyer appears for him or makes submissions on behalf of him, then the court should appoint an amicus curiae to represent the accused.
The bench then noted in its order that responding to its request in the order dated November 30, 2021, senior advocate Jaideep Gupta has accepted to assist the court as amicus curiae and submits that on issue of sentence, this court had granted liberty to the contemnor to advance submissions as deemed appropriate.
It said the amicus has submitted that in his opinion, the matter may be adjourned for short time while clarifying that this would be the final opportunity and in case he chooses to not remain personally present or advance submissions through his counsel, the court may proceed further with the matter.
The bench said with regard to the solicitor general’s submission that the court must clarify that it is not the government of India's stand that a confidential proceeding is going on, this matter does not require elaboration as the position is clear from the November 30, 2021, order.
On November 30 last year, the top court had said it cannot wait any longer and the sentencing aspect in the contempt matter against Mallya would be dealt with finally.
Noting that Mallya, who is presently in the United Kingdom (UK), was held guilty of contempt in 2017, and the matter was thereafter to be listed to hear him on the proposed punishment to be awarded to him, it had said that the apex court has waited “sufficiently long”.
The top court had in 2020 dismissed Mallya’s plea seeking a review of its 2017 verdict which held him guilty of contempt for transferring USD 40 million to his children in violation of court orders.
The apex court noted that as per an office memorandum, under the signature of the deputy secretary (extradition) of the Ministry of External Affairs (MEA), the proceedings for extradition have attained finality and Mallya has “exhausted all avenues for appeal” in the UK.
It had noted that the November 30, 2021 office memorandum also refers to proceedings pending in the UK which are stated to be “confidential and as such no details are getting disclosed”.
The top court had requested senior advocate Jaideep Gupta to assist it as an amicus curiae in the matter.
On January 18 last year, the Centre had told the top court that the government is making all efforts to extradite Mallya from the UK but the process is being delayed due to some legal issues involved in the matter.
Mallya has been in the UK since March 2016. He is on bail on an extradition warrant executed three years ago by the Scotland Yard on April 18, 2017.
